The foundation of workplace
harassment law is the theory that harassment is itself
discrimination: the denial to certain people of a particular
kind of employment benefit -- a tolerable work environment -- based
on their race, sex, and so on. This theory is equally
applicable to other discrimination statutes, including laws that
bar discrimination against patrons of places of public
accommodation, such as libraries, restaurants, bookstores, and the
like.

Some statutes make this
explicit, prohibiting, for instance, "communication of a sexual
nature" that creates "an intimidating, hostile, or offensive . . .
public accommodations . . . environment." 1 Other statutes that speak only of
discrimination have also been interpreted as barring
harassment: For instance,

A Wisconsin administrative agency has concluded that an
overheard (though loud) discussion that used the word "nigger"
created an illegal hostile public accommodations environment for
black patrons, even though the statements weren't said to or about
the patrons. 2

The Minnesota Supreme Court has held a health club liable
for creating a hostile public accommodations environment, based on
the club's owners "belittl[ing]" a patron's religious views
(expressed in a book the patron had written) and "lectur[ing] her
on fundamentalist Christian doctrine." 3

Three judges of the New York Court of Appeals would have
held a gift shop liable for selling novelty gifts that contained
Polish jokes. 4

An official publication of the South Dakota agency in charge
of state antidiscrimination says "racist or sexist statements
displayed in a public accommodation which affect a person's ability
to use and enjoy those accommodations" are illegal. 5

A Rhode Island administrative agency found that the name
"Sambo's Restaurants" violated public accommodations laws because
it was offensive to blacks. 6

In one Chicago Commission on Human Relations case, a
customer had told a group of waitresses that "if it were his
restaurant, he would probably fire all of them"; when he turned
around and walked away, a waitress said "I don't know who he thinks
he is, that holier than thou damn faggot." The Commission
concluded this speech was hostile public accommodations environment
harassment based on sexual orientation. 7

In another Chicago case, the Commission found that speaking
to a customer in a "derogatory matter" because he was a ticket
broker -- someone who legally scalped tickets -- constituted public
accommodations harassment based on "source of income." 8

Various public libraries are beginning to restrict access to
sexual material on the Internet, based in part on the fear of
sexual harassment complaints by patrons (as well as by employees).
Click here for details.

A recent Harvard Law Review Note argues that American Indian
team names, including not just the oft-condemned Redskins but also
the Braves, Blackhawks, Indians, and Chiefs, are illegal because
they create a hostile public accommodations environment. 9 The U.S. Department of
Justice Civil Rights Division likewise began an investigation of a
high school whose teams were named the Warriors and the Squaws, on
the grounds that the district "allow[ed] the use of American Indian
religious symbols at [the high school] that demean American Indian
religious practices" and that because of the team name classmates
would call male students "warriors" and female students "squaws,"
which created a "racially hostile [educational] environment." 10 The district settled by
renaming the Squaws to the presumably less Indian-sounding Lady
Warriors.

It's fairly well-established
that other antidiscrimination statutes, which ban discrimination in
education and housing, also apply to hostile environment
harassment; 11 it stands to
reason that the same would be true for public accommodations
statutes. And just as workplace harassment law covers the
speech of coworkers and -- at least in some Circuits -- educational
harassment law covers the speech of classmates, 12 so public accommodations
harassment law would cover the speech of fellow patrons. 13

Commentators have likewise
suggested that bigoted speech by patrons of places of public
accommodation -- including even bigoted speech on online services,
such as America Online -- may be outlawed by harassment law. 14 Moreover, as with
workplace harassment, the speech need not even be addressed
directly to the offended customer; it's enough that it be seen or
overheard. 15

Consider an example from a
neighboring field, "hostile educational environment"
harassment. In late 1994, in the wake of a controversy about
an allegedly sexist ad in the Santa Rosa Junior College newspaper,
some students posted sexist remarks about two female student
newspaper staffers on a college-run electronic conference. 16 Though the female
students didn't see the message, they eventually learned about it,
and when they did, they filed a complaint with the U.S. Department
of Education's Office for Civil Rights.

The Office concluded that the
messages were probably "so severe and pervasive as to create a
hostile [educational] environment on the basis of sex" for one of
the students. 17 A
college tolerating speech that creates a sexually hostile
educational environment would, in the Office's view, violate Title
IX of the Civil Rights Act. 18 If this is so, then a service provider
tolerating similar speech on its computers would probably be
violating public accommodations statutes.

For all the reasons I mention
in my discussion of workplace harassment law, I believe that
hostile public accommodations environment harassment law is itself
unconstitutional. But its existence also shows that
workplace harassment law is indeed starting us down the slippery
slope to broader speech restrictions.

Once courts accept the notion
that speech can be outlawed by workplace discrimination laws, it
becomes much easier for them to hold that speech can be outlawed by
almost identical public accommodation discrimination laws.
If racially or sexually offensive speech by coworkers is, as some
supporters of workplace harassment law have argued, "conduct, not
speech," 19 then logically the
same would be true of offensive speech by fellow bookstore or
restaurant patrons. If workplace harassment law is justified
by Congress's Commerce Clause powers "to regulate the national
economy," 20 then so is public
accommodations harassment law. Conversely, if public
accommodations harassment law can't be justified on these grounds,
then it seems clear that such grounds can't justify workplace
harassment law. Perhaps some justifications, which are
specific to the workplace, can do the job, but not these ones.

Analogy is a powerful force in
our legal system. Supporters of workplace harassment law
regularly use existing restrictions -- such as fighting words bans
and obscenity law -- as analogies to justify workplace harassment
law. 21 Likewise, once
we recognize a "workplace harassment exception," we risk getting a
lot more censorship than we bargained for.

1.
Mich. Comp. Laws Ann. § 37.2103(i) (West Supp. 1995); see
also Minn. Stat. Ann. § 363.01, subd 41 (West 1991);
Mont. Admin. R. 24.9.609(2)(c) (1999); N.D. Cent. Code §
14-02.4-01 (Supp 1995); N.D. Cent. Code § 14-02.4.02 (1995);
Cook County, Ill. ord. no. 93-0-13 art. V(c); Cambridge, Mass.
Human Rights Ordinance § 2.76.120(N) ("It is an unlawful
practice for any person to harass . . . or otherwise discriminate
against any person in or upon any public accommodation because of
the race, color, sex, age, religious creed, disability, national
origin or ancestry, sexual orientation, gender, marital status,
family status, military status or source of income of such person,
or attempt to do so"); cf. Pennsylvania Human Rels.
Comm'n publication (no date) (asserting that Pennsylvania
state discrimination law bans public accommodations harassment "on
the basis of your race, color, religion, national origin, ancestry,
age (40 and above), sex, disability, use of a guide animal or
having a GED instead of a high school diploma");
New Jersey Dep't of Law & Pub. Safety, Sexual Harassment■Your
Rights (May 1997) ("Sexual harassment . . . is against the
law . . . when you try to enter or join an organization that
solicits members from the general public"); Iowa Civil Rights
Comm'n, Sexual Harassment in the Workplace: It's Against the
Law ("The Laws That Prohibit Harassment . . . .
The 'Iowa Civil Rights Act of 1965´ . . . does not expressly
define or prohibit sexual harassment, but such behavior is
recognized by the courts as a form of prohibited sex
discrimination. The state law . . . prohibit[s] sex
discrimination in the area of housing
[and] public accommodations . . . ."); New Jersey Dep't of Law &
Pub. Safety, Sex Discrimination: Your Rights ("Where
is Sex Discrimination [including hostile environment harassment]
Against the Law? . . . Places of Public Accommodation"); New
York City Comm'n on Human Rights document at
http://www.ci.nyc.ny.us/nyclink/html/serdir/html/missions.html
(asserting that New York City human rights law bars public
accommodations harassment "on the basis of race, color, creed, age,
national origin, alienage
or citizenship status, gender, sexual orientation, disability,
marital status . . . lawful occupation . . . and record of
conviction or arrest").

2.
Bond v. Michael's Family Restaurant,
Wisc. Labor & Indus. Rev. Comm'n, Case Nos. 9150755, 9151204 (Mar
30, 1994). The case suggested that this theory may be
limited only to speech by the restaurant owner, but a later case by
the same agency made clear that the proprietor can be held liable
for a hostile environment created by its patrons, so long as it is
able to eject patrons but declines to do so. Neldaughter v.
Dickeyville Athletic Club, Wisc. Labor & Indus Rev. Comm'n, Case
No. 9132522 (May 24, 1994); see also D'Amico v. Commodities
Exchange, Inc., 1997 N.Y. App. Div. LEXIS 506 (holding that
proprietor of a place of public accommodations was responsible for
harassment by fellow patrons).

See also Harris
v. American Airlines, Inc., 55 F.3d 1472 (9th Cir. 1995) (passenger
sued airline based on racist statement made by a fellow passenger;
court held that in the airline context such state claims are
preempted by federal aviation law); Hodges v. Washington Tennis
Service Intl, Inc., 870 F. Supp. 386 (D.D.C. 1994) (health club
member sued club over racist statements made by employee; claim
dismissed on procedural grounds); In re Totem Taxi,
Inc. v. New York State Human Rights Appeal Bd., 65 N.Y.2d 300, 480
N.E.2d 1075, 491 N.Y.S.2d 293 (1985) (passengers sued taxi company
over racist statements and threats made by taxi driver; claim
dismissed because company had taken reasonable
steps to prevent such conduct); Comm'n on Human Rights &
Opportunities vs. Mills, case no. 9510408 (Aug. 5, 1998), reported
in Conn. Law Trib., Sept. 21, 1998 (recognizing hostile public
accommodations environment cause of action)
compare King v. Greyhound Lines, Inc., 61 Or. App.
197, 656 P.2d 349 (1982) (customer sued bus company over racist
statements made by an employee; court held for customer, but
suggested that the law might not cover racist statements made by a
fellow patron, and that employment harassment law might not be an
apt analogy).

3.
In re Minnesota by McClure v Sports & Health Club,
Inc., 370 N.W.2d 844, 872-73 n.40 (Minn. 1985) (Peterson, J.,
dissenting); id. at 853 & n.16; id. at 867 n.25
(Peterson, J., dissenting). See also Department
of Fair Emp. & Housing v. University of Cal., 1993 WL 726830, *14
(Cal. F.E.H.C.) (interpeting California public accommodations law
as applying to sexual and racial harassment). But
see Haney v University of Illinois, No 1993SP0431, 1994 WL
880339 (Ill. Human Rights Comm'n) (holding that state public
accommodations law does not bar the creation of a hostile
environment, in
large part because of free speech concerns).

6.
In re Urban League v. Sambo's, No. 011790461 (R.I.
Comm. Hum. Rts. Mar. 16, 1981). But see Sambo's
v. City Council of City of Toledo, 466 F. Supp. 177 (N.D. Ohio
1979) (holding that it was unconstitutional for a city to deny sign
permits to Sambo's because of its name); Sambo's Restaurants, Inc.
v. City of Ann Arbor, 663 F.2d 686 (6th Cir. 1981) (arguing that
use of "Sambo's" name was protected by the First Amendment);
id. at 696 (Keith, J., dissenting) (arguing the
contrary).

12.
See, e.g., Andrews v. City of Philadelphia, 895 F.2d
1469 (3rd Cir. 1990) (employer liable for harassing speech by
coworkers); Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d
754, 755 (9th Cir. 1997) (employer liable for harassment by
patrons); 29 C.F.R. § 1604.11(d),(e) (employer liable for
sexual harassment by coworkers and by patrons); Oona S. v.
McCaffrey, 1997 WL 458675 (9th Cir.) (educator liable for
harassment by classmates). But see Rowinsky v.
Bryan Independent School Dist., 80 F.3d 1006, 1016 (5th Cir. 1996)
(holding that educator is not liable under Title IX for harassment
by classmates; this seems to be the minority view); Davis v. Monroe
County Bd. of Educ., 1997 WL 475207 (11th Cir.) (en banc).
Both Rowinsky and Davis
rested on the special status of Title IX as an exercise of
Congressional power under the Spending Clause -- such reasoning
would not apply to state hostile public accommodations environment
laws.

13.
See Neldaughter v. Dickeyville Athletic Club, Wisc.
Labor & Indus Rev. Comm'n, Case No. 9132522 (May 24, 1994)
(proprietor of a place of public accommodations can be held liable
for a hostile environment created by its patrons, so long as it is
able to eject patrons but declines to do so); see also D'Amico v.
Commodities Exchange, Inc., 652 N.Y.S.2d 294 (1997) (proprietor
responsible for harassment by fellow patrons).

See also Harris
v. American Airlines, Inc., 55 F.3d 1472 (9th Cir. 1995) (passenger
sued airline based on racist statement made by a fellow passenger;
court held that in the airline context such state claims are
preempted by federal aviation law). But see
King v. Greyhound Lines, Inc., 61 Or. App. 197, 656 P.2d 349 (1982)
(customer sued bus company over racist statements made by an
employee; court held for customer, but suggested that the law might
not cover racist statements made by a fellow patron, and that
employment harassment law might not be an apt analogy -- note that
the case dates from a very early stage in the era of hostile
environment litigation).

Likewise, the U.S. Department
of Housing and Urban Development takes the view that offensive
speech by fellow tenants can be illegal "hostile housing
environment." See U.S. Department of Housing
and Urban Development, HUD Report on Racial and Ethnic
Harassment at Boston Housing Authority Finds Progress Made Since
1996, U.S. Newswire, May 15, 1999.

14.
Stuart Biegel, Hostile Connections, L.A. Daily J. 7
(Aug. 22, 1996) (focusing on cyberspace); Deborah M. Thompson,
"The Woman in the Street": Reclaiming the Public Space from
Sexual Harassment, 6 Yale J. L. & Feminism 313 (1994)
(accepting the notion that public accommodation laws bar harassing
speech, and suggesting that they be extended to patrons of public
parks); see also Robert A. Sedler, The
Unconstitutionality of Campus Bans on "Racist Speech": The View
from Without and Within, 53 U. Pitt. L. Rev 631, 673 (1992)
(asserting that racist statements by employees of places of public
accommodation to customers violate laws that bar
discrimination in public accommodation).

16.
The remarks were "anatomically explicit and sexually derogatory,"
but there was no allegation that they were threatening or otherwise
generally outside the First Amendment's protections. Letter
from John E. Palomino, Regional Civil Rights Director for United
States Department of Education, Office of Civil Rights, to Dr.
Robert F. Agrella, President of Santa Rosa Junior College 2 (June
23, 1994) (on file with author).

17.
See id. at 7. The message was posted on a
men-only conference -- by student request, SOLO included men-only
and women-only conferences as well as integrated ones -- but this
factor didn't affect the OCR's harassment analysis. It seems
to me that, if the messages were posted on an integrated
conference, especially one which the offended women read, this
would have only exacerbated their harassing effect.

18.
The Office concluded the college didn't violate Title IX, but only
because it "took immediate action to remedy the harm . . . and to
prevent sexual harassment from occurring in the future."
Id. at 8. Cf.U.S. Department
of Education, Sexual Harassment: It's Not Academic
(describing the Department of Education's view that, even in
"colleges and universities," "displaying or distributing of
sexually explicit drawing, pictures and written materials" and
"sexual or `dirty´ gestures" may constitute harassment if
"severe, persistent, or pervasive"
enough).

See also CMU
Disciplinary Charges, at
http://joc.mit.edu/charges.html, reporting various "harassment"
claims based on online speech at Carnegie Mellon University.

19.
See, e.g., Robinson v. Jacksonville Shipyards, Inc.,
760 F. Supp. 1486, 1535 (M.D. Fla. 1991) ("[pornographic] pictures
and verbal harassment are not protected speech because they act as
discriminatory conduct in the form of a hostile work environment").

20.
Suzanne Sangree, Title VII Prohibitions Against Hostile
Environment Sexual Harassment and the First Amendment: No Collision
in Sight, 47 Rutgers L. Rev. 461, 540 (1995), makes this
argument. To my mind, it is singularly unpersuasive; of
course Congress has Commerce Clause powers, but they are
constrained by the Free Speech Clause. See
Eugene Volokh, How Harassment Law Restricts Free
Speech, 47 Rutgers L. Rev. 563, 573 (1995).